About this case:

• Citation:
  [2025] IECA 33
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

Delivering an ex tempore judgment for the Court of Appeal in January, which was published online yesterday, Ms Justice Isobel Kennedy remarked that “while it is no part of sentencing to exact vengeance, this was nonetheless conduct which deserved to be censured and punished in a sufficiently meaningful way, and it was not”.

Background

The respondent, then a member of the Defence Forces, had been out socialising with a group of male friends in the early hours of 29 May 2022. The group were walking along O’Connell Street in Limerick at the same time as the victim, Ms O’Brien, was walking home from work with a female friend.

The victim and her friend politely requested the respondent’s group to desist from shouting homophobic slurs at a male across the street. The respondent then verbally abused and viciously assaulted Ms O’Brien causing her to lose consciousness, with the attack ending only when a passer-by, Mr Teer, intervened. 

The respondent fled the scene, and was later found to have sent Snapchat messages bragging about the attack.

The respondent initially blamed Ms O’Brien and claimed to have acted in self-defence to gardaí, but resiled from that account, having been shown CCTV footage of the attack.

Sentencing

The respondent was sentenced to four years’ imprisonment, reduced to three years for mitigating factors such as his guilty plea, his lack of previous convictions, and the fact that he was a serving member of the Defence Forces.

The entirety of the sentence was suspended for a period of three years on condition that the respondent pay Ms O’Brien a sum of €3,000 within two years.

The DPP brought an application to review the respondent’s sentence on grounds of undue leniency pursuant to s.2 of the Criminal Justice Act 1993.

The Court of Appeal

Ms Justice Kennedy stated that the onus fell on the DPP to establish that there was such a divergence between the sentence imposed by the Circuit Court and that which ought to have been imposed to the extent that it amounted to an error of principle.

The court considered that assault offences range extensively in terms of gravity and that although the law in respect of offences under s.3 of the Non-Fatal Offences Against the Person Act 1997 had changed since the offence was committed, the maximum penalty at the relevant time was of five years’ imprisonment.

Noting that the offence was of “an inherently serious nature”, the Court of Appeal considered the issue of general deterrence and pointed out that “people should be entitled to walk the streets without fear at night whether alone or in the company of others. Attacks on individuals, whether male or female are far too common, and it is necessary that such conduct be punished in the appropriate manner in order to communicate society’s deprecation of such conduct. This may require a custodial sentence in order to give effect to general deterrence.”

Expressing that the sentencing judge failed to impose a sentence which properly reflected the principle of deterrence, Ms Justice Kennedy highlighted that the attack on Ms O’Brien was brutal and unprovoked following the group being “properly asked” to refrain from homophobic abuse, and could have had even more serious consequences.

“Assaulting any person in any manner is reprehensible, but we have repeatedly stated, to attack someone while on the ground can have the most serious and often in fact, fatal consequences,” she said.

The court also recounted the cowardly acts on part of the respondent, including running from the scene and leaving Ms O’Brien injured on the ground, lying to gardaí, and sending reprehensible messages on Snapchat.

Agreeing that the offence had been correctly placed at the upper end of the range by the nomination of a notional sentence of four years’ imprisonment and that that sentence had been properly reduced by one year in mitigation, albeit a greater reduction could have been afforded in that regard, the Court of Appeal disagreed with the sentencing judge’s approach in suspending the entire sentence.

Ms Justice Kennedy explained: “This was a case where the custody threshold was clearly passed, as acknowledged by the sentencing judge. The consequences for the victim were traumatic, both physically and psychologically. The fact that the respondent was in all likelihood to lose his employment with the defence forces was not a ground for avoiding a custodial sentence.”

The judge remarked that this was not a case “on the cusp” between a custodial and non-custodial sentence, but that if it had been, greater weight could have been afforded to the loss of the respondent’s livelihood.

The Court of Appeal was of the view that having regard to the gravity of the offence, an error in principle arose in that the judge gave undue weight to mitigating factors and did not properly take account of general deterrence.

Conclusion

Accordingly, the Court of Appeal quashed the respondent’s sentence and imposed a headline sentence of four years’ imprisonment, reduced to three years for mitigation with the final 12 months suspended on the mandatory condition that the respondent be of good behaviour for a period of one year.

Director of Public Prosecutions v Cathal Crotty [2025] IECA 33